To prevent disputes, it is necessary to know exactly whether the day of dismissal is considered a working day or not. The experts will tell you about it. In the article you will find a dismissal date calculator.
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How to determine the date of termination: is the day of dismissal considered a working day
Upon termination employment contract the employer is obliged to make a full settlement with the employee, to issue work book, other documents that are related to labor activity and were stored in the organization. It is important for a personnel officer to know whether the day of dismissal is considered a working day or not, whether the date of termination of employment always coincides with the last day of work.
Subject to the provisions of Article 84.1, the employee terminates his labor activity on the day of the immediate termination of the employment contract. This is the actual date of dismissal. That is, the day of dismissal is a working day for the employee.
Often there are situations when an employee is actually absent from the workplace, for example, he works according to the schedule every other day. The shift ended on December 20, and the next one will begin on December 24. At the same time, the warning period ends on December 21, since the application for leaving on one’s own was submitted on December 7.
An expert of System Kadra will tell you how to terminate an employment contract when an employee leaves on his own. The article describes the procedure for dismissal, especially the preparation of the necessary documents.
Based on Article 14 of the Labor Code of the Russian Federation, in general, it is necessary to warn the employer about leaving 14 calendar days. There are exceptions to this rule where the actual notice period is reduced or eliminated entirely. The countdown of fourteen days starts from the next working day after the application for dismissal was submitted.
The day of dismissal is considered the last working day. In the application, the employee must indicate: “I ask you to dismiss own will 21 December". In this situation, the last day of dismissal is not considered a working day. But the employee is not required to go to work to formalize the dismissal on his day off. Therefore, in this particular situation, on December 20, the employer must give the employee a full calculation and return the work book. The procedure for the employer's actions is described in detail in the "Personnel System": Is it possible to fire an employee on his day off
Date of dismissal upon dismissal by agreement of the parties
The last working day upon dismissal by agreement of the parties is indicated in a written agreement. The wording of the following character is introduced into it: "the day of dismissal is December 20." It should be borne in mind that when terminating an employment contract by agreement of the parties, there is no need to observe a two-week notice period. The TD is terminated on a date agreed between the parties.
What to do if the day of dismissal fell on a weekend
The day of the complete dismissal of the employee from work is considered the next day after the weekend or non-working holiday. This position is supported by:
- Rostrud.
- The norms of Article 14 of the Labor Code of the Russian Federation.
But it should be borne in mind that there is another position. Calculations and documents can be issued to a departing employee on the eve of non-working dates. This rule does not apply to shift work.
If the employee shift schedule works on the day of dismissal, the calculation is made on deadlines without making any transfers. Such recommendations are given in the letter of Rostrud under No. 863-6-1 dated June 18, 2012. With this option, another problem may arise. On weekends and non-working holidays, accounting and personnel specialists have a rest. The employer has the right to call a personnel officer and an accountant. And then compensate such employees for leaving on a weekend or non-working holiday in accordance with the requirements Labor Code RF.
What day is considered the day of dismissal during sick leave and in other cases
Consider whether the day of dismissal is a working day or not, if the termination of the employment contract is carried out upon receipt of leave with subsequent departure. In this case, the date of termination of employment is considered the last day of vacation. A full payment and all documents should be issued on the last working day before the vacation.
★ More on the topic in the magazine “Personnel Business: to minimize the risks for the company. From the article you will learn who is not entitled to count on rest with subsequent departure, how to arrange a vacation with subsequent dismissal for an employee with whom a fixed-term employment contract has been concluded.
An employee who is on sick leave cannot be fired only if the termination of the employment contract is initiated by the employer. This rule is established by Article 81 of the Labor Code of the Russian Federation. If the dismissal occurs for other reasons, for example, at the initiative of the employee or by agreement of the parties, the employee’s illness will not be an obstacle to terminating the contract.
The personnel officer needs to know whether the day of dismissal is considered a working day or not, whether the date of termination of employment always coincides with the last day of work. In different situations, the date of termination of the relationship is calculated taking into account the current legislation. The day of dismissal is considered a working day if it does not fall on a weekend and a holiday, vacation time, sick leave.
Not so long ago, my friend, an employee of a large commercial bank, received a notice of reduction in connection with the reorganization of the company. From his colleagues at the bank, he learned that the date of dismissal indicated in the notice is not a working day and is not paid.
But is it really so? With this question, my friend turned to me, a personnel officer with experience. After consulting a friend on this issue, I decided to write this article, which will help the reader figure out what day is considered the day of dismissal and whether it is necessary to work on the day of dismissal.
In order to determine which day is the day of dismissal, it is necessary to refer to article 84.1 of the Labor Code of the Russian Federation.
If you are resigning of your own free will, then the day of dismissal will be the date that you indicated in the resignation letter. For example, the phrase “I ask you to dismiss me of your own free will from 08/14/2019”, indicated by you in the application, means that the date of your dismissal is August 14, 2019. A similar rule applies if you draw up a dismissal by agreement of the parties.
The situation is slightly different with layoffs, because in this case The date of dismissal is determined not by you, but by the employer. If we are talking about a reduction due to liquidation or reorganization, then no later than 2 months before the planned dismissal, the management of the company must send you a written notice. With the document, the employer notifies you of the upcoming dismissal and indicates the date of such dismissal. If you are going to be laid off due to reorganization, the employer is also obliged to offer you other vacancies in the company.
Date of dismissal
The last "line" of termination of employment between you and the employer is an order to dismiss. It doesn’t matter for what reason or on what basis you quit - it is the date of dismissal by order that is final and is reflected in the work book.
Let me explain more clearly. Let's say you wrote a statement asking you to dismiss you of your own free will on 08/14/2019. But after negotiations with the authorities, they changed their mind and decided to quit 2 weeks later - on August 28, 2019. In this case, you write an application again (already with new date), the old application is cancelled.
How to determine the date of dismissal in this case? There is only one answer - only by order. You have the right to write an unlimited number of applications, changing the date of dismissal. But, in the end, you will be fired on the date specified in the order. After all, a statement is a document that indicates your desire to quit, while the order approves the termination of employment.
If you leave the same day, then the date of dismissal is also determined by order. The only difference is that in this case, the application and the order for dismissal are issued on the same date.
The day of dismissal is considered a working day or not
The inclusion of the day of dismissal in paid working days is a popular issue not only for ordinary employees, but also for novice personnel officers.
Based on the provisions labor law, the day of dismissal is a full-time working day, which is paid in the general manner.
From the above, it follows that day of dismissal you must fully work. In other words, as on a normal working day, on this day you need to come to work on time, without delay, and leave workplace possible only after labor day. If you work in shifts and your work shift fell on the day of dismissal, then such a shift must be worked out completely, in the general manner.
Many retiring employees are convinced that the day of dismissal is intended for issuing a bypass sheet and that it is not necessary to perform labor functions on this day. I hasten to dissuade you - this is not so! Until the moment when you leave the territory of the enterprise (but not before the end of the working day), labor Relations with the employer are considered valid, which means that your labor obligations are preserved, namely, the fulfillment official functions. Writing reports, taking calls, meeting with clients - everything that you do on a normal working day, you must do on the day of dismissal.
Of course, the legislation provides for small "tricks" for those employees who are categorically against working on the last working day. For example, on this day you can apply for sick leave or vacation at your own expense. In the first case, you may not come to work on the basis of a sick leave, while the management will be obliged to pay you for this day in the prescribed manner.
The situation is a little more complicated with a vacation at your own expense, because it must first be agreed with the management. If you manage to sign an application for leave at your own expense with the manager, on the basis of which an order will be issued, then on the day of dismissal you may not work, but this day you will not be paid. If speak about contemporary practice, then the employer is very reluctant to sign an application for leave at his own expense on the day the employee is dismissed.
After all, it is understood that on this day the management may have any working questions for the employee (for example, regarding the transfer of cases). Therefore, the chance that the day of dismissal for you will be a vacation at your own expense remains very illusory.
Obligations of the employer on the last working day
If everything is more or less clear with the duties of a leaving employee, then what should the employer do on the day the employee leaves? And again, the answer to this question is in the Labor Code.
On the day of dismissal, you have every right to demand from the employer:
- issuance of a work book;
- payment for the days worked, including the day of dismissal.
If on the day of dismissal you did not receive a payment or the employer refuses to issue you a work permit, feel free to file a complaint with the labor inspectorate.
Another important point: for the delay in the work book, you can recover a fine from the employer. The basis for the recovery is from the day of dismissal to the day of the actual issuance of a work permit, you are recognized as deprived of earnings due to the impossibility of finding a job. In this case, the employer is the guilty party, and therefore is obliged to pay compensation.
The employer is obliged to make a full settlement with the employee on the day of his dismissal. What day is considered the day of dismissal? And does it always coincide with the last working day?
In Art. 84.1 of the Labor Code of the Russian Federation states that the employee terminates his labor activity on the day the employment contract is terminated. This is called the actual day of dismissal.
But there are cases when the employee is actually absent from the workplace on that day, although the workplace was saved for him. For example, an employee is a watchman and works on a daily schedule every three hours. His last shift was May 15, and the day he was fired was May 17.
In Art. 14 of the Labor Code of the Russian Federation says that upon dismissal of his own free will, the employee must notify the employer 14 calendar days in advance. This general rule, and there are exceptions to it, when the warning period is slightly reduced.
The countdown of these 2 weeks starts from next day after submitting an application to the employer. Not from the day it was written, but from the day it was submitted.
For example, an employee submitted an application to an employer on May 5. Therefore, the countdown will start from May 6, and the last working day will be May 19.
If the last business day falls on a weekend or public holiday, the next business day will be the last day. The same day will be considered the day of dismissal.
In the application for dismissal on one's own initiative, one does not need to write the pretext "c" - "I ask you to dismiss me of your own free will from May 19." It only introduces a double meaning into the statement itself. Some not very experienced personnel officers are beginning to get confused - May 19 is the last working day of this employee, or on May 19 he will no longer go to work.
Hence the confusion with payments and compensation.
Therefore, you need to write "I ask you to dismiss me of your own free will on May 19." That is, on May 19, this employee no longer goes to work, and the last working day is May 18.
If the employee "parts" with the employer by agreement of the parties, then the parties themselves negotiate the date of dismissal. The agreement states that "the day of dismissal is May 19."
If the employee quits while on vacation, then he must also submit an application 2 weeks in advance, and indicate the date of dismissal in it. As practice shows, this is the last day of vacation.
If the employee is dismissed at the initiative of the employer, then the last working day, which is also the day of dismissal, is indicated in the notice of dismissal. An exception is dismissal for unreasonable absenteeism. Here, as a rule, the day of dismissal and the last working day do not coincide.
For example, an employee did not come to work on May 13 and did not warn the employer. He appeared at work only on May 18 and was unable to provide the employer with evidence of valid reasons.
The procedure for fixing absenteeism and compiling all the necessary papers will take some time. Most likely, the date “dismissed for absenteeism on May 18” will be in the dismissal order.
What is the procedure for dismissal of an employee and what legal norms regulate it?
It would seem that every working citizen knows the answer to this question.
But in reality, you can encounter nuances that will baffle even a legally competent person.
What does the law say about the need to work out upon dismissal? How is this period calculated correctly, and what days does it include? Do you get paid for 2 weeks when you leave?
We will talk about this in detail in this article.
In what cases is an employee required to work 14 days after submitting an application?
The very concept of "dismissal" in the Legislation means the termination labor agreement between the employee and the employer, and the subsequent termination of their professional relationship.
This relationship can be broken for three reasons:
- at the initiative of the employee.
In the latter case, according to the law, the employee is registered at the enterprise for another two weeks from the date of application.
This period is given to the employer in order to replace the employee. If he does not have time to find a new person for the vacant position, then he still has no right to keep the employee in the company.
How is the dismissal procedure, which involves a mandatory two-week working off?
Having decided to leave his position, the employee must submit an appropriate application to the employer. Despite the fact that in principle there is no statutory sample for such a statement, the document must still include certain mandatory clauses.
The first and basic rule is that it must be in writing. Just come to the personnel department and quit by submitting an application orally will not work.
The application must also contain the following mandatory items:
- date of preparation of the document;
- day of dismissal (indicated by the employee);
- personal signature of the employee;
- basis for application: in this column it is written simply “of one's own free will”.
According to the law, the employee is not required to describe the reason for leaving his position in detail. You can apply in person to the manager, write it to the personnel department or send it by mail with a notification.
Rules of legal regulation of relations between an employee and an employer
The question of the procedure for dismissal and, as well as its specific terms, is considered in article 80 of the TKRF.
According to her, a period of two weeks for working out is designated as "the term for warning about leaving the position."
As such, the employee does not need to go to work these days, and the law does not provide for it.
Having decided to quit, he can be on unpaid leave or on sick leave all these two weeks. The employer is obliged to find a replacement during this time.
In the event that an employee to fill a vacant position was found earlier, the previous one, by agreement with the employer, will not have to fully work out this period. The main condition is that a new specialist must be invited to work in the company officially, in writing.
After the two-week term of notice of dismissal, the employee has the right to stop working. After this period, the employer must in full, with a record of dismissal. The date of the employee's actual departure from the company and the date of dismissal from the TC must be the same.
Example. The employee wrote a letter of resignation on December 3, 2015. In the personnel service, this application was registered on December 3, 2015. The period will be counted from the day following the day the employer received the original application. That is, from December 4, 2015. The end of the warning period in this case will be December 17, 2015. On this day, the final settlement with the employee is made and all necessary documents are issued to him.
What day does work start?
As mentioned above, working off the two-week period begins the day after the employer accepts the letter of resignation.
It must be officially registered with the Human Resources Department.
If the application and its registration took place on the same day - for example, June 5 - then the processing begins on June 6 and ends on June 20.
If the application was sent by mail (for example) on June 5 and it was registered in the personnel department on June 12, then the countdown starts from June 18.
Accounting for weekends and holidays when calculating the working time
Enough topical issue is a system for taking into account weekends and holidays when calculating working time.
The law does not say that these days are not taken into account in the prescribed two-week period.
And according to the law, the employer does not have the right to require the employee to work extra days, motivating this with holidays or weekends.
The Law states that the accounting for the period of working off occurs in calendar days. But there is a point that confuses many employees. It states that if the last day of the calendar period falls on a non-working day, then the dismissal occurs on the next business day after the expiration of this period.
This paragraph should be taken literally. If the employee submitted a letter of resignation on December 19, and it was registered in the personnel department on December 20, the last day of the working period becomes January 3 of the next year. The days from January 1 to January 6 are considered holidays, that is, the employee will be fired on January 7.
To require an employee to work extra days, motivating this with holidays or weekends, the employer does not have the right.
Sick leave during the working period
If during the period set for working off, the employee falls ill, this does not affect the extension of this period.
By law, the employer must formalize the dismissal and make it on the day the working period expires, regardless of the fact that he is on sick leave.
He must pay his employee in full.
After the expiration of the period of temporary disability, the employee must contact the organization and present. He should be given Required documents and produce all required .
The Law also provides for a person who has resigned the opportunity to apply for sick leave compensation to the organization from which he was fired after 30 days from the date of dismissal.
Compensate him for sick leave former employer will be liable in the amount of 60% of his regular size. True, this rule is valid only if, within this thirty-day period, the employee was not officially enlisted in the staff of another company. This paragraph is regulated by Federal Law No. 255.
Last day of working and settlement with the employee
On the last day of working off, the employee must come to the enterprise and signIn the life of every employee one day comes the day of parting with a beloved (or not so) organization. By the onset of this day, it is recommended to prepare in advance and find out in advance whether the day of dismissal is considered a working day, and also what manipulations the employer must make with the documents of the resigning person in order to release him without debts and mutual claims.
What day is taken as the day of dismissal and is it fair to consider it a working day
According to the provisions of the current legislation, the day of parting with the company is considered to be a working day. The date falling on this day must be expressly indicated in the application of the departing employee. On this day, a citizen who leaves the company receives a work book and other documents that are required to be issued in this case, as well as a full financial statement.
According to the standard scheme, if the day of dismissal falls on a weekend or holiday, the employee must receive a settlement from the company on the first business day immediately following this weekend.
So, for example, if Sunday falls on the date indicated in the resignation letter, the employee must appear for the calculation, work book and other papers on Monday.
It is this scheme for determining the day of dismissal that works with the most common way to leave the company - upon dismissal at will, as well as upon dismissal by mutual agreement of the parties.
If the day of dismissal falls on a weekend or holiday, the employee must receive a settlement from the company on the first working day
If an employee has expressed a desire to go on vacation with subsequent dismissal, the last working day and the day of dismissal for him will be the final day of vacation. If an employee falls ill and goes on sick leave during the working period, you will need to wait until the sick leave is closed to complete the dismissal process. The next working day after leaving the sick leave will be accepted in this case as the day of dismissal. Sick leave must be paid in full. If the employee did not appear at the workplace after the sick leave closed, missed days.
In case of expiration fixed-term contract standard scheme is also applicable. In such a situation, the employer is obliged to warn the employee about the upcoming event three days before the date of dismissal. The term of the contract under which a temporary employee was hired for the period of absence of the main employee expires on the day the main employee leaves. In this situation, the Code does not require notification temporary worker about the return of the permanent.
When it comes to dismissal at the initiative of the employer, with a reduction in the number of staff, upon dismissal upon returning from vacation or sick leave, the above scheme is also applicable. If the company wants to fire an employee for absenteeism, he can be fired on the last working day before absenteeism, but orders and other documents must contain the current date. There is a second option, which is that the dismissal occurs on the first working day of the employee after absenteeism. In this case, the date of dismissal and the date of the dismissal order will coincide, and the days of absenteeism are marked accordingly in the timesheet and are not payable. This method is more preferable for the employer, since it will be impossible to find fault with him during litigation.
Dismissal due to the death of an employee also takes place. In this case, in order to issue a dismissal order, it is necessary to obtain a certificate of death from the relatives of the deceased. The day of dismissal will be considered the day of death of the employee. In this case, the day of dismissal will be the last working day if the person died on a working day, and will not be such if this unpleasant event occurred on a day off. If the day of dismissal fell on a weekend, the dates of the order and direct dismissal will differ. The order must include the date the death certificate was presented to the employer.
Video: last day of work upon dismissal
How to correctly indicate the date of dismissal in a statement, in an order, in a work book, and is it possible to move the date of dismissal
In practice, there are many situations when an incorrectly determined date of dismissal becomes a reason for lawsuits and proceedings. Most often, the courts take the side of the dismissed employee, which is why companies should be very careful in calculating the last working day and the day the employee was fired.
When an employee terminates, the desired date of departure must be clearly stated on the employee's application. Specialists personnel office work recommend avoiding the preposition “from” when indicating the date in the application, in other words, the phrase “I ask you to fire me on March 5 of the year” is more preferable, and the phrase “I ask you to fire me from March 5, 2018” should be avoided. The same date must be indicated in all documents issued on the basis of a letter of resignation, that is, in an order and in a work book. The employer does not have the right to arbitrarily move the date of dismissal, even if there are unfinished projects and unassigned cases. By dismissing an employee earlier than he himself stated in the relevant document, the employer violates the employee's legal right to withdraw the application, if the latter, for some reason, has changed his intentions. Dismissal later than the declared day can be interpreted as an attempt to keep the employee against his will, which is also prohibited by the Labor Code of the Russian Federation.
Particular attention should be paid to the correct indication of the date of the last business day.
Features of working out upon dismissal
When an employee leaves the company, the law imposes an obligation to work a certain number of days. The duration of working out can vary from three to fourteen days, some categories of citizens have the right to leave the company in one day, without working out anything at all. Those who will have to interact with the employer for some time after the application are very interested in the following questions:
- what day does work start?
- can working out include weekends and holidays;
- is it possible to quit without working out in principle;
- how to correctly determine the last working day.
We will answer each of the questions in turn.
The days of working off are counted from the day following the filing (registration) of the application for resignation. The law does not say that the days of working off the employee must work, so working off may include days off and holidays, days of paid or unpaid leave and sick days. Certain categories of citizens have the right to quit without working off, namely:
- persons of retirement age;
- women expecting a baby;
- mothers and other persons who are adoptive parents of one or more children under the age of 14 years.
In addition, citizens who do not belong to the above categories have the legal right to leave the company on any day. They can do this when specific life circumstances occur:
- admission to higher education educational institution or another educational institution for a bachelor's or master's degree at the department of daytime education;
- the onset of the appropriate age (55 years for women and 60 years for men) and the employee's retirement;
- violation by the employee of the rules of the Labor Code or the provisions of local labor or collective contracts;
- moving to another locality to a new place of residence for the purpose of employment or for medical reasons;
- emigration of the spouse (wife) for employment abroad;
- the obligation to provide care for a family member in a state of incapacity, a child with a disability, or a child under 14 years of age.
If the employee does not belong to any of the listed categories, but he has a very strong desire to part with the company as soon as possible, you can try to negotiate with the management directly. In some cases, the parties find the possibility of a compromise, and the desire to leave the company without working off at all turns out to be feasible.
The author's personal practice shows how the provisions of the Labor Code, according to which weekends and holidays are included in the working period, can be used to your advantage. The author of these lines once had to submit a letter of resignation from the company on the eve of the long New Year and Christmas holidays. The application was submitted on December 28, due to which almost the entire period of the fourteen-day work fell on weekends and holidays. Such a simple way can help reduce working off upon dismissal, because the law does not require a citizen to work directly on the days of working off. In the case when the working off is only three days, in a certain way choosing the date of filing the application (for example, before May holidays), it is possible to ensure that all the work will take place on weekends, after which it will be possible to safely come to the company for the calculation and documents that rely on issuance. Of course, the employer may not like it much, but in such a situation, everyone is free to prioritize on their own.
Determining the last working day is very simple. It is enough to count the days of working off, starting from the day following the day the application was submitted. The last of the working days will be the last working day in the company, as well as the day of dismissal.
In most cases, employees of the personnel department of the enterprise are able to answer any questions regarding the dismissal procedure. They are interested in ensuring that the dismissal is executed correctly, therefore, they readily provide application templates and advise on the intricacies of the process.
Video: is it necessary to work for two weeks when leaving the company
When is the payment made to the employee upon dismissal
All final settlements with an employee leaving the company are supposed to be performed on his last working day at the enterprise. On the same day, the departing employee must receive his work book in his hands, and with it other documents that are usually issued in this case.
According to Article 84.1 of the Labor Code of the Russian Federation, on the day the employment contract expires, in other words, on the last working day of the employee, he is supposed to receive from the employer in full wages for the days worked, as well as allowances, bonuses, and other payments stipulated by the terms of the employment contract , and compensation for unused vacation, if the latter is present. If on the day of his dismissal the citizen was absent from the workplace, the employer is obliged to make the payment of the financial resources due to the employee on the next day or at the first request of the person leaving (see article 140 of the Labor Code of the Russian Federation).
In the presence of unused days vacation, the employee must be paid financial compensation for each of these days. The amount of compensation is calculated based on the average monthly wages worker. The number of vacation days depends on how long the citizen worked in this company.
At some enterprises, employees who leave of their own accord are also entitled to severance pay. severance pay paid only at those enterprises where it is provided for by internal regulations or the terms of a contract of employment.
Video: payment terms upon dismissal
When leaving the company, it is recommended to do it in such a way that a good memory remains of you, because you can never be sure that your paths and those of your colleagues or superiors will not cross again. To avoid any kind of abuse by the employer, each employee must know what labor rights he possesses both in the process of work and when parting with the employer. Such awareness will help to part beautifully, in a timely manner and with maximum benefit for both parties.